An ERA ruling exposes an employer's failure to honour family violence leave
An Auckland hospitality business has been ordered to pay more than $21,000 after dismissing a chef who took time off to protect his children from a family violence situation.
The Employment Relations Authority (ERA) has found that an Auckland hospitality business unjustifiably dismissed a chef who failed to attend work in February 2024 as he dealt with a family violence emergency.
ERA Member Matthew Piper found that the employer failed to recognise the chef's entitlement to family violence leave under both his employment agreement and the Holidays Act 2003, and instead treated his absence as a resignation.
The employer has been ordered to pay the chef $13,500 in distress compensation and $7,920 in lost wages.
A family crisis, and a dismissal
The chef had been employed at the Auckland hospitality business since July 2023. In early February 2024, his personal circumstances deteriorated significantly as tensions with his ex-partner escalated.
The chef had to collect his children from his ex-partner's home and relocate them to his partner's house, where they remained for several weeks until safer accommodation was found. Police were involved and the chef was allocated a victim support worker.
When the employee did not appear for work on Monday, he explained that he had "had to take my children and run away" and that he needed time to make his children "safe and OK."
But instead of inquiring further into the circumstances, the business owner pressed the chef for confirmation of whether he had resigned.
When the chef clarified he wished to return the following week and offered to provide contact details for his victim support worker, the employer issued an ultimatum: return the next day or his resignation would be accepted.
The chef said he could not attend as he had to meet his victim support adviser and file court documents. When the next roster was circulated, the chef was not on it. His employment was over.
ERA's findings
Piper found that the employee's communications cannot properly be read as him having resigned. The decision to remove the employee from the roster was found to be an unjustified dismissal at the employer's initiative.
Central to the ERA's findings was the employer's failure to engage with the chef's family violence situation.
Piper noted that the employer's own email made clear he understood the chef was seeking time off to deal with family violence, yet the employer pressed ahead regardless.
"[The employer's] failure to engage further with [the chef] regarding the circumstances of his family violence issue and its decision to dismiss him for missing work when he was entitled to be away to deal with a family violence situation were not actions a fair and reasonable employer could have taken," Piper wrote.
The employer was also found to have breached its duty of good faith by failing to engage constructively with the employee. However, no penalty was imposed as the breach was not found to be deliberate or sustained.
The awards reflect a 10% reduction after the ERA found the chef's unauthorised absences the previous week contributed to the situation
